thing in esse, for which exceptis, salvo, prater, and the like, be apt words; and a reservation which is always of a thing not in esse, but newly created or reserved out of Bract. lib. 2. fol. the land or tenement demised. (p) Poterit enim quis rem dare et partem rei retinere, vel partem de pertinentiis, et illa pars quam retinet sem percum eo est ef semper fuit. (g) But out of a general a part may be 32 b. & fol. 249. (9)9 El. Dy. 264. 228.3.8 25.3. 56, excepted, as out of a manor, an acre, ez verbo generali 5 Ε. 3. 66.34 Am. 1. aliquid excipitur, and not a part of a certainty, as out 143 a of twenty acres, one. Reserve cometh of the Latin word reservo, that is, to provide for store; as when a man departeth with his land, he reserveth or provideth for himself a rent for his own livelihood. And sometime it hath the force of sa (v) 2 E. 4. 48. 26 Ans. ring or excepting. So as (r) sometime it serveth to pl. 66. (Ante, 47 a.) reserve a new thing, viz. a rent, and (81) sometime to (3) 35 H. 6.34. except part of the thing in esse that is granted (15). 47 a. Reservation of rent must be made to the lessor and not to a stranger. Reservation of rent to one joint-tenant, on a joint lease, enures to both: unless by deed indented. (1) 5 Ε. 4. 4. 14 E. 3. Bre. 282. 8 Co. 70, 71. It is further to be observed, that the lessor cannot reserve to any other but himself, for Littleton saith, reserve to himself (H). (t) If two joint-tenants be, and (15) In a preceding note Lord Coke asserts, that reservation is always of a thing newly created out of the land demised. Ante, 47 a (supra.) But here he is more qualified in expression, and allows the word to be sometimes used to except part of the thing granted. How ever, the former is the more techni cal use of the word; exception being a more proper term than reservation for the latter purpose. The learning on this subject will be found under the title Reservation in Viner's Abridgment.-[Hargr.n. 1. 145a. (232).] his remedy by distress for the arrears, when the lessee comes into possession. 2 Rol. Abr. 406, 407 Plowd. 423. See further as to the things out of which a rent may be reserved, ante, 142 a. vol. 1. p. 441. (Ed.) (H) For the reason of this rule, see ante, 143. vol. 1. p. 442. n. (C). II, however, a person makes a lease to commence after his death, reserving rent to his heirs; this will be deemed a good rent-service arising in the heir, not by way of purchase, but as incident to the reversion descending to the heir; and, therefore, may be released by the ancestor during his life, which it could not be, if it was a new purchase in the heir. 2 Rol. Abr. 447. pl. 2. 2 Saund. 370. But where a father and his son and heir apparent demised land for years, to begin after the death of the father, rendering rent to the son by his proper name; the father died; the lessee entered; and, the rent being behind, the son distrained: it was resolved, that this reservation of rent was utterly void: for, although the son was heir to the father, yet he could not have the rent as heir to his father, bes they make a *lease for years by parol, or deed poll, reserving a rent to one of them, this shall enure to them both; but if it be so reserved by deed indented, it shall enure to him alone by way of conclusion (1). (413)* where the lessor dies (u) Littleton here is putting of a case, and not making Diversity between a rea lease, for then he would not reserve the rent to him, servation of rent to the lessor, without saying, but to him and his heirs, for otherwise the rent shall de- " and his heirs" and a termine by his death, if he die within term (16). (w) reservation generally, But if he reserve a rent generally without showing to during the term. whom it shall go, it shall go to his heirs. If he reserve (u) Vid. sect. 214, 215, 216, &c. 10 E. 4. a rent to him and his assigns, yet the rent shall deter-18. 11 E. 3. A89, 86. mine by his death, because the reservation is good but 25. 30 H. 8. Dy. 45. during his life. So it is, if he reserve a rent to him and (10) Mich. 5. Ja. in repl. inter Wootton & his executors, it shall end by his death, because the heir Ed Edwin, Bank le Roy. hath the reversion, and the rent was incident to the re- Hil. 33 El. Rot. 1431. in Bank le Roy, inter version (17). So, if a man warrant land to B. and his Richmond & Butcher. (Ante, 215 b. 2 Rol. (16) "Rent, reserved to him and his assigns during the term, or to him his executors and assigns during the term, determines by the lessor's death. T. 2 Car. B. R. Noy. n. 412. 12 Co. n. 20. and Hil. 32 Eliz. Richmond's case." Hal. MSS. See Noy. 96. 12 Co. 35. and Cro. Eliz. 217.-But notwithstanding the cases here cited by Lord Hale, it was adjudged, whilst he was chief justice of the king's bench, that the words during the term are of themselves sufficient to 27 Η. 8. 19. 21 H. 7. carry the rent to the heir, if the Abr. 450. 12 Co. 35. (17) "Rendering rent to him, cause the rent was not reserved to the heir; and he could not have it by the reservation on the lease, because he was a stranger to the land, and had nothing in it at the time of making the lease. For heir is the only word of privity in law requisite to the reservation of rents; the heir being, in representation in point of taking by inheritance, eadem persona cum antecessore. Oates v. Frith, Hob. 130. Note, that a man may reserve a rent to himself for his life, and a different rent to his heir. Ante, 213 b. 214 a. p. 82, 83. See further as to the reservation of rents, infra, n. (K).-[Ed.] (I) The reason of the difference is this; where the lease is by deedpoll, or parol, the rent shall follow the reversion, which is jointly in both lessors; and the rather, because the rent being something in retribution for the land given, the joint-tenant to whom it is reserved ought to be seised of it in the same manner as he was of the land demised, which was equally for the benefit of his companion as himself; but where the lease is by deed indented, they are estopped to claim the rent in any other manner than as it is reserved by the deed, because the indenture is the deed of each party; and no man shall be allowed to recede from, or vary his own solemn act. 2 Rol. Abr. 447. Vent. 161. 6 Bac- Abr. 20.-[Ed.] assigns, the assignee must vouch during the life of B., for the warranty continues but only during the life of B., for the warranty is but for life, for want of words of inheritance. But if the warranty be to B., his heirs and assigns, so as he hath an inheritance therein, then his assignee shalt vouch after his decease. So if the rent be reserved to the lessor, his heirs and assigns, so as it be incident to the inheritance, then shall all the assignees of the reversion enjoy the same (к). (K) In Sacheverell v. Froggatt, 1 Vent. 161, Lord Hale lays down some useful rules respecting the reservation of the rent. He said, that where the reservation of the rent is general, the law directs according to the intent and the nature of the thing demised: As if tenant in tail makes a lease for years, rendering rent to him and his heirs, the rent shall go to the heir in tail along with the reversion: for the law uses all industry imaginable to conform the reservation to the estate. So where tenant for life, the remainder over to several by limitation of uses, with power to make leases, demises, reserving rent to him, his heirs and assigns, it shall be adjudged to him in remainder. Whitlock's case, 8 Co 70 b. So if lessee for 100 years makes a lease for 50 years, rendering rent to him and his heirs during the term, it shall go to the executor. So where a copyholder by license leases, rendering rent to him and his wife during their lives, and to his heirs, where by the custom the wife has her free-bench, the wife shall have the rent as incident to the reversion, though not party to the lease; for the reversion, if possible, will attract the rent to it. So where the words are general, they will be expanded according to law; and therefore if tenant in tail to him and the heirs male of the body of his father, lets the land, rendering rent to him, his heirs and assigns, the rent shall go to the heir male of the body of his father, though he be not heir to the lessor; for it is incident to the reversion. Cother v. Merrick, Hardr. 91. 95. 2 Saund. 371. ed. Wms. But where the reservation is particular, as to the lessor, without going further, or to the lessor and his assigns, there the rent shall determine with his death, though the lease, upon which it is reserved, be still continuing: for the reservation is good only during his life, and it shall never be carried further than the period of time the lessor himself has fixed it: and therefore, in this case, the agreement of the parties prevents the construction of law. Hardr. 91. So where the reservation is special, and to improper persons, there the law follows the words. And therefore if rent is reserved to the lessor, and his executors, he having the freehold, it will determine at his death; because the reversion, to which the rent is incident, descends to the heir. So if a lease be made of a term for years, reserving rent to the lessor and his heirs, such rent will determine by the death of the lessor: for the heir cannot have it, as he could not succeed to the estate, being only a chattel; and the executor cannot have it, there being no words to carry it to him. 1 Ventr. 161. But where a man, seised of land in fee, made a lease for years, reserving rent to him and his assigns during the term, it was adjudged, that this reservation should not determine by the death of the lessor, but the rent should go to this heir; for though there was no mention of the heirs in the reservation, yet there were words which evidently declared the intention of the lessor, that the payment of the rent should be of equal duration with the lease; the lessor having expressly provided, that it should be paid during the term; and consequently the rent must be carried over to *" Yearly rent." So it is, if the rent be reserved (414)* every two or three or more years (18). Of rents Little. The rent may be reserved every year, or ton doth excellently treat in his Chapter of Rents, and every two or three therefore in this place thus much shall suffice. years. (415)* *" But in such case it behoveth, that the lessor be seised in the same tenements at the time of his lease; for it is a good plea for the lessee (19) to say, that the Where the lessor is not seised of the land, at lessor had nothing in the tenements at the time of the the time of the demise, the lessee may plead lease." And the reason of this is, for that in every con- nil habuit in tenementract there must be quid pro quo, for contractus est tis; quasi actus contra actum; and therefore if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor any thing for which he should pay any rent. And in that case he may also plead, that the lessor non or non dimisit, &c. : dimisit, and give in evidence the other matter (20). (18) See further as to reservation of rent, Vin. Abr. tit Reservation, and Gilb. Treat. on Rents. [Hargr. n. 10. 47a] (19) "Nota, this diversity. In pleading a lease one ought to say, that the lessor was seised and de mised; but in count in debt for rent it is good without alleging (20) "18 Ε. 3. 16. Brief, 747. the heir, who came into the inheritance after the death of the lessor, and would have succeeded in the possession of the estate, if no lease had been made: and, if the lessor had assigned over his reversion, the assignee should have had the rent as incident to it; because the rent was to continue during the term, and must therefore follow the reversion, since the lessor made no particular disposition of it, separate from the reversion. Sury v. Brown, Latch. 99, 100. Ventr. 163. So if a lease be made for years, reserving rent during the term to the lessor his executors administrators and assigns, the rent goes to the heir: because the reservation being to the lessor and his assigns during the term, the words executors and administrators are void, and, the lessor having the inheritance, such express words evidently discover the intent of the contract, and that the lessee agreed and bound himself to the payment of the rent during the continuance of the demise. Sacheverell v. Froggatt, 2 Saund. 367. 2 Lev. 13. Raym. 213. Ventr. 161. And for the same reason, if a termor for fifty years leases for twenty-five years, reserving rent to him and his heirs during the term, the executors shall have the rent after the death of the lessor. Ventr. 162. Note, that where no reversion is left in the lessor, and the rent is reserved to his executors, administrators, and assigns, it will go to them, and not to the heir. Jenison v. Lexington, 1 P. Wms. 555. Et vid. ante, vol. 1. p. 441. n. (B). Where tenant for life and the person in reversion join in a lease for life, or gift in tail, by deed, reserving a rent, this shall enure to the tenant for life only, during his life, and after his death to the person in reversion. Ante, 214 a. p. 84. See further on the subject of this note, 2 Prest. Conv. 184-189.-[Ed.] F scous if the lease De by "Except (x) the lease be made by deed indented, &c." deed indented. (z) 45 Ε. 3. 7. If the lease be made by deed indented, then are both par 20 Ε. 4. 10. 31 Η 6. ties concluded (L); (y) but if it be by deed poll the 48. 35 Η. 6. 34. 9 H. 6. 35. 14 Η. 4. 22. 2. Lease by estoppel. (y) 2 E. 2. Estop. 253. 39 E. 3. 13 Pl. Com 434 18 E. 3 16. 15 E. 3. Estop. 236. 14 H. 4. 32. (Mo. 20.) (L) Leases by estoppel are such as are made by persons who have no interest at the time, or at least no vested estate, but are to operate on their ownership, when they shall acquire the same. Thus, if an heir apparent, or a person having a contingent remainder, or an interest under an executory devise, or who has no title whatever at the time, makes a lease by indenture, or by a fine sur concessit, and afterwards an estate vests in him, this indenture, or fine, will operate by way of estoppel, to entitle the lessee to hold the lands for the term granted to him; and this estoppel, when it becomes efficient, and can operate on the interest, will be fed by the interest; and the lease will be deemed as a lease derived out of an actual ownership. Weale and Lower, Pollexf. 54. 4 Bac. Abr. Leases (O). 2 Prest. Conv. 136. And in such case, where a lease is made by indenture, the lessor and lessee are concluded from avoiding the lease: and if an action be brought, and the plaintiff declare on the indenture, and the defendant plead that the lessor nil habuit in tenementis, the plaintiff, instead of replying the estoppel, may demur: because the estoppel appears on the record. Palmer v. Ekins, Stra. 118. 11 Mod 411. Ld. Raym. 1550. S. C. And the law is the same, if the defendant pleads what is tantamount to a plea of nil habuit in tenementis: as that the lessor had only an equitable estate in the premises. Blake v. Foster, 8 T. R. 487; and see Palmer v. Ekins, supra; and n. (M) infra. It has beer determined that the assignee of a reversion may take advantage of an estoppel, because it runs with the land. Palmer v. Ekins, supra. So, where covenant was brought on an indenture of lease by the assignees of the lessor (a bankrupt); the defendant pleaded that the lessor nil habuit in tenementis; it was held bad, on general demurrer. Parker v. Manning, 7 T. R. 537. In like manner it has been adjudged, that au assignee of the lessee, under a lease by indenture, cannot plead that the lessor did not demise. Taylor v. Needham, 2 Taunt. 278. The rule, that a tenant shall not be permitted to set up an objection to the title of the landlord, under whom he holds, is not a mere technical rule, but one founded in public convenience and policy. Hence, a lessee of land in the Bedford level cannot object to an action by his landlord for a breach of covenant in not repairing, that the lease was void by the stat. 15 Car. 2. c. 17. for want of being registered; such act enacting, that "no lease, &c. should be of force but from the time it should be registered," not avoiding it as between the parties themselves, but only postponing its priority with respect to subsequent incumbrancers registering their titles before. Hodson v. Sharpe, 10 East, 350. But it seems, that, in order to give a party the benefit of an estoppel, in all cases where it is necessary to set forth a title, a good title must appear on the face of the declaration; for in Nokes v. Audor it was resolved, by all the judges, that although they would not intend a lease to be good by estoppel only, yet where it appeared on the face of the declaration to be so, the assignee of such a lease could not maintain an action for the breach of any of the covenants contained in the lease. Cro. Eliz. 373 436. So where covenant was brought against a lessee for years, on an indenture of lease, and it appeared on the declaration, that the lease was executed by a tenant for life, that the plaintiff, the reversioner, who was then under age, was named in the lease, but that the lease had not been executed by him until after the death of the tenant for life, judgment was given for the defendant, on the ground that the lease was void by the death of tenant for life; Buller, J. observing, that the court could not proceed on the doctrine of estoppel in this case, because it was admitted by the plaintiff on the pleadings, that he did not execute until after the death of the tenant for |